What are your legal rights when you buy a game which doesn't function as intended?
EDIT: Consumer rights laws in the UK for digital content were updated in October 2015 - I've written all about this here!
Have you ever wondered whether you're legally entitled to a refund when a game you've bought is so utterly broken that's it's not worth playing, or is missing an aspect promised by the developers, such as online multiplayer?
This is the question I asked myself when I heard about all the problems plaguing recent games like Assassin’s Creed Unity (AC Unity) and Driveclub.
I'll aim to keep this shorter than my recent piece on copyright law in video games (found here) for your benefit. My hope is once again to simply outline the broader issues that apply here so you, as a consumer, know the kinds of questions to be asking yourself! So, aside from the usual disclaimers (I am only a trainee lawyer, not specialising in this area of law, and nothing I say should be considered legal advice) let’s get into this.
What gives consumers protection in the UK?
The relevant law is the Sale of Goods act 1979 (SOGA) - this gives consumers protection when they buy 'goods' from a business. In a nutshell this says that 'goods' must be of a certain quality, otherwise the consumer may be entitled to a refund or replacement. The most important part of this is that it applies automatically - there is no need for the store you buy your game from to agree to it; if it were otherwise then it would be completely useless.
What are Goods?
The act itself defines goods as - "all personal chattels other than things in action and money, and in Scotland all corporeal moveables except money; and in particular “goods” includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale and includes an undivided share in goods."
In regular English, this basically says 'goods' includes tangible, physical (this is kind of what corporeal means) objects, except money. This raises an interesting question in relation to digital products, which by nature often have no physical component - are these therefore not 'goods'? I'll come back to this later.
But it's clear that physical copies of games bought from a store would come under this definition. So what protections does the law give you for these?
Protections for physical goods
In case you're super keen, the relevant section of the act is s14. This states that goods must be of 'satisfactory quality' and be 'fit for purpose'.
Section 14 SOGA (emphasis added):
(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
(2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods--
(a) fitness for all the purposes for which goods of the kind in question are commonly supplied,
(b) appearance and finish,
(c) freedom from minor defects,
(d) safety, and
So section 14 (2A) sets out the test, and (2B) sets out the criteria to be applied to answering this - when determining if something is of satisfactory quality we must consider things like its appearance, safety, finish, freedom from minor defects etc.
So you're probably thinking aha! These games clearly have some defects – I should get a refund! But let's not forget that 2A clearly says the test is to be judged by the "reasonable person" and only refers to "satisfactory quality," not perfect condition. So even if there is a minor defect with a game, if the "reasonable person" - i.e. not the average commenter on YouTube - considers the product overall still to be satisfactory quality, then the defect is not necessarily sufficient to entitle you to a refund.
The problems with these games
Assassins Creed Unity has experienced the following problems (listed on Ubisoft's own forums):
- The missing faces bug
- Staggering frame drops (~20fps) in crowded areas
- People falling through the floor
- Random crashing
- Severe pop-in and graphical issues
- Problems with save files
- Online connectivity issues
Driveclub has had server issues leaving many unable to race against other players. For a game that describes itself as a MMO (massive multiplayer online) racing game, being able to get online in would seem quite essential…
Some of these problems have already been fixed through post-release patches, meaning if you were to buy the game today you'd likely encounter less problems and have fewer grounds to complain on. But what about on day one - are these types of problems enough to argue that it was not of "satisfactory quality" or "fit for purpose" at the time of release?
Applying the law to these games
Let's deal with Driveclub first. This is a game that is fundamentally built around its online aspect, playing with a group of friends to form a club and race against other groups online. If you take this element out you pretty much negate the very reason a lot of people will have bought the game in the first place. You could argue that this constitutes a “major flaw” with the game, which is probably reason enough to argue it is not of “satisfactory quality.”
But there is another argument to be found in s13 of SOGA, which states that where goods are sold by description, the goods should correspond to this description. This is intended to cover purchases where you don’t physically see the thing before you buy it – e.g. if you bought something off Amazon. When you buy a video game you can’t open the game in the store and check it works – you are pretty much going on information that the developers/publishers have provided about the game. So if they say there is online multiplayer, you are entitled to assume that there actually will be. If there isn’t, but they have said there is, then it doesn’t match its description and you’re probably entitled to a refund.
AC Unity is a slightly more perplexing beast though, because all the promised elements were in the game in some way, it’s just that they weren't very good. This case isn't as ‘clear’ on first glance as Driveclub since this is a question of quality, rather than lack of a feature. This is where the bullets listed above (minor defects etc) will come in to play.
It’s quite easy to see that AC Unity’s problems listed above constitute at the very least minor errors, creating a product that has a very low appearance/quality/finish, and arguably not fit for purpose. But remember that these facts alone don’t prove that the game wasn’t of “satisfactory quality.” The question to ask is, bearing all this in mind, would the “reasonable person” consider this game, with all of its problems, “satisfactory quality?”
This is when you can start thinking about the broader context of the game. This is one of the world’s largest selling AAA franchise with a ginormous team working on it – consumer expectations are, rightly or wrongly, higher for a game that has such financial and other resources behind it. You can probably rightly say that the “reasonable person” here is entitled to expect a higher level of quality than one could expect from an indie game being developed by 2 guys in their spare room.
Now I can only speculate here, but I believe if you put these facts to the average person, not even a gamer, they would likely say that these problems are not acceptable in such a top-of-the-line game. The fact that the no-face bug has graced headlines of major non-gaming related news outlets should point to the fact that this is such an extreme problem.
Application to Digital Media?
When researching for this piece I came across a really interesting report written in 2010 (so admittedly it may be slightly out of date) by a professor at Sheffield University. This raised an excellent question that I hadn’t previously considered – does SOGA’s definition of “goods” apply to digital media? You’ll remember this is defined as “corporeal moveables,” corporeal meaning tangible/physical, and moveables meaning “things” (except houses/land). Digital products don’t really appear to fit within this definition since they often aren’t accompanied by any physical component.
It’s possible this creates the position where customer A buys the physical copy of Driveclub and is afforded protection by SOGA, but customer B who buys the game digitally from the Xbox/PS store, isn’t. Customer A can potentially demand a refund for their game, but B cannot –does that make any sense?!
The UK Government has apparently expressed a desire to afford equal protection to digital media. However, the report points out that courts have expressed concern about including digital media within the definition of “goods.” The author of the report goes on to say though that there’s no reason they shouldn’t be 'goods', especially due to the increasing trend towards digital media, and to do so would bring law into line with the UK Government’s statements.
I’m not sure whether there has been any development on this since the writing of the report, but I don’t believe there has been anything expressly – perhaps some court interpretations have though. My current belief is that the application of SOGA to digital goods is uncertain – which is terrible news for the consumer!
Remedies - patching, refund, repair?
Another really interesting point was raised in a Guardian article (and subsequently written about here) that spoke about the patching of games - if a problem in a game can be resolved by patching, as is often the case, does this prevent buyers from demanding a refund? I won't go in to this in much depth (particularly because there's no clear answer!), but my gut instinct would have to be a no: (1) the fact is that if a game is completely broken when you buy it you should be able to demand a refund; (2) who knows how long it will take the developer to fix the problem (if ever) - are consumers simply meant to sit on this broken game with their fingers crossed that it eventually gets fixed? Should the developers have a “reasonable time” to try and fix it? What if you don’t have an internet connection though? For those willing to wait for a patch that's fine, but for those who don't, I don't think the fact the problem might be fixed in the future should prevent them from demanding a refund now.
How can we prevent people playing game and returning falsely on these grounds?
Also, how do we stop people going about playing the game through to completion and then trying to return the game on grounds of it being too buggy? This is the problem that plagues both physical and digital game retailers, which has led to a lot of companies (like valve) simply saying no refunds! Some companies have introduced interesting policies – such as you can return if you’ve played less than X hours, or you only get a certain number of returns per account – which work to a limited extent. But what if there is a game breaking bug that only appears after 8 hours, but you’re only allowed to return after less than 6 hours play time? What if you’ve used you account’s allowance of returns, but then AC Unity comes out? Not ideal. Anyway…not the time or place here – but interesting nonetheless.
Game store reasoning
One thing that has infuriated me is when game stores say yeh, we agree that the game is broken but, well, that’s not our problem – the problem is with game design, which we had no involvement in, so no refund for you. WRONG! Yes, they didn’t make the game or its flaws, but they are selling it and making money off of it. The consumer is not expected to go all the way to EA or Ubisoft and request a refund from them because that’s entirely impractical. The customer is entitled to go into the store where they bought the game and demand a refund. It is then up to the game store if they decide to recover this refund from the publisher of the game itself. There’s a clear chain (publisher -> retailer -> customer) and each person simply has to go back to the person before them for their refund. So stop it game stores, stop it!
Without going into technicalities, the basic remedy (if the game is found not to be of satisfactory quality) is a refund - take that game back to the store where you bought it and get your money back. If you bought the product online (we've already discussed the uncertainty as to whether or not these protections apply to such purchases) then you're best bet is to contact the store where you bought it from online - although you'll likely not get very far unless you can speak to someone face to face.
If noone understands the law, is it useless?
Now this kind of brings me to the end of my rant, but I thought I’d leave you with my final thought, inspired by a comment on my last blog post. If SOGA is meant to protect consumers, then does this level of misunderstanding and uncertainty in its application render it completely useless? If the general public doesn’t know how to enforce their consumer rights, then can it really be said to offer any protection? I can admit that I’ve been that annoying guy who has unfortunately had to bust out my legal knowledge when demanding a refund for a game in a store, but I must say it made me feel a bit of a tool.
But to the average person who hasn’t had 5 years of law school, who’s unlikely to have trawled through the legislation (if they can even identify the right piece of law) – let alone this article! – what’s the chance of them being able to enforce their rights effectively? Are you going to stand in your local Game, pull out your leather bound copy of SOGA and start identifying ways the game is not of “satisfactory quality?”
But this is a kind of catch-22 situation – laws are rarely clear and can't really be since there are inevitably complex cases. Since this law covers so many things (from pianos to games to cars) it has to be flexible - but in leaving such flexibility it creates so many questions which often have to be resolved by someone familiar with the law.
The law itself is technically clear, but how it’s applied is not. The test of satisfactory quality involves a lot of judgement calls, and knowledge of how this has been interpreted by courts in the past, which only someone familiar with the law can likely answer. Whilst SOGA is undoubtedly an incredible piece of law that offers consumers amazing protection to faulty products, this is only the case if you know how to wield the sword that the government has given you. Hopefully after reading this you’ll have a bit of a better idea how to do this yourselves, and be spared another experience like this:
Header Photo: (c) owned by Square Enix - thanks for making Vivi so awesome!